Opinion
99-CV-6149 CJS(F).
January 22, 2002
Paul Shatkin, Esq., Buffalo, NY., For the Plaintiff.
Glenn Pezzulo, Esq., Culley, Marks, Tannenbaum Pezzulo, Rochester, NY., For Defendant/Third-Party, Plaintiff Holtz House of Vehicles, Inc.
Harlod Lee Schwab, Esq., Lester, Schwab Katz Dwyer, New York, NY., For Third Party Defendant American Isuzu Motors, Inc.
DECISION and ORDER
Plaintiff James Sims ("Sims") brought suit against Holtz House of Vehicles, Inc. ("HHOV") concerning an Isuzu Trooper vehicle he purchased from HHOV. In a complaint filed in this Court on April 8, 1999, Sims alleges causes of action against HHOV under New York law sounding in strict product liability, negligence and breach of implied warranty under the Uniform Commercial Code. HHOV filed a third-party complaint against American Isuzu Motors, Inc., et al. seeking indemnification or contribution for any recovery by Sims.
The case is before the Court on American Isuzu Motors, Inc.'s ("Isuzu") motion, pursuant to Federal Rule of Civil Procedure 56 for summary judgment, dismissing HHOV's third-party action. See Notice of Motion (document # 34). HHOV has also filed a motion for summary judgment, requesting dismissal of Sims' complaint. Notice of Motion (document # 36).
Neither Isuzu Motors Limited nor Isuzu Motors of America, Inc., has entered an appearance, nor has plaintiff obtained entry of a default against either.
Factual Background
The following facts are undisputed. HHOV sold and delivered a used 1992 Isuzu Trooper four-wheel drive sports utility vehicle to Sims on April 23, 1996, in Rochester, New York. At the time, Sims informed HHOV's agent that Sims wanted a vehicle capable of transporting him and his personal property from Rochester, New York, to Dallas, Texas. Sims was subsequently injured when driving the Isuzu Trooper to Texas three days after delivery. While in Virginia, the Isuzu Trooper spun out of control on Route 490 while Sims was trying to negotiate a curve after the tires on the right side of the car left the pavement and Sims attempted to bring them back onto the road surface. After spinning, the car rolled over and Sims was injured.
Sims claims that the Isuzu Trooper did not contain a federally-mandated warning sticker with the following language:
WARNING
THIS IS A FOUR WHEEL DRIVE VEHICLE WHICH WILL HANDLE AND MANEUVER DIFFERENTLY FROM AN ORDINARY PASSENGER CAR, IN DRIVING CONDITIONS WHICH MAY OCCUR ON STREETS AND HIGHWAYS AND OFF ROAD. AS WITH OTHER VEHICLES OF THIS TYPE, IF YOU MAKE SHARP TURNS OR ABRUPT MANEUVERS, THE VEHICLE MAY ROLL OVER OR MIGHT GO OUT OF CONTROL AND CRASH. . . .
Plaintiff's Statement Pursuant to Rule 56 (document # 39) at ¶ 3; c.f. Isuzu's Statement Pursuant to Rule 56 at ¶ 2(b). Further, Sims claims that the HHOV salesperson never advised him of the rollover potential of the vehicle.
Discussion
A. Isuzu's Application
During oral argument, counsel for Sims specified that the plaintiff had two theories of recovery: the first based on the failure of the Isuzu Trooper to contain the federally-mandated warning sticker referred to above; the second, the failure of the HHOV salesperson to expressly advise Sims of the vehicle's rollover potential, or, at a minimum, draw his attention to the warning sticker if, in fact, it was present. Based upon counsel's clarification, HHOV indicated that it had no opposition to Isuzu's application. Accordingly, HHOV's third-party complaint is dismissed in its entirety.
B. HHOV's Application
In his response to HHOV's motion to dismiss, Sims raised a procedural challenge. Specifically, Sims contends that HHOV's application was untimely, since it failed to comply with the scheduling order of U.S. Magistrate Judge Jonathan Feldman, to whom this case was referred for nondispositive matters. During oral argument, HHOV did not dispute the fact that it failed to file its motion to dismiss in accordance with Judge Feldman's scheduling order. Therefore, the Court denies HHOV's application as untimely.
The Court did grant HHOV leave to file an application requesting that the Court permit the late filing nunc pro tunc of their motion to dismiss. However, the Court indicated that HHOV would be required to establish some "good cause" for their failure to comply with Judge Feldman's scheduling order. As to such potential motion on the part of HHOV, the Court set the following dates: any such motion must be filed by January 24, 2002; if such motion is filed, Sims must respond by March 7, 2002; either oral argument will be heard if such motion is filed, or alternatively, the Court will set a pretrial conference date.
CONCLUSION
Accordingly, the motion to dismiss filed by third-party defendant American Isuzu Motors, Inc. (document # 34) granted and the application of defendant Holtz House of Vehicles, Inc. (document # 36) is denied in its entirety.
Although the Court denied HHOV's motion on procedural grounds, eliminating the need to decide the substantive issues raised, during oral argument there was some discussion of these matters. Specifically, the Court discussed with Sims HHOV's position that plaintiff lacked any evidentiary proof in admissible form that the rollover tendency of the Isuzu Trooper was the proximate cause of the accident. In that regard, counsel for HHOV suggested that the evidence supported its contention that Sims himself was at fault for the accident since he ultimately plead guilty to reckless driving in connection with the incident. Counsel for Sims responded by arguing that the lack of a warning sticker, or the failure of HHOV's salesperson to direct Sims' attention to the rollover danger, was the proximate cause of the accident since if either the sticker had been present, or the salesperson had warned Sims, he would not have purchased the Trooper, and, thus, the accident would never have occurred. The Court opined that such logic was flawed, but left determination of the issue until such time as it was properly before the Court.
IT IS SO ORDERED.
Dated: Rochester, New York January 22, 2002
Charles J. Siragusa United States District Judge